In the Interest of J.H., Minor Child

• Court: Supreme Court of Iowa
• Decided: December 18, 2020
• Docket: 20-0854
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 20–0854

Submitted November 17, 2020—Filed December 18, 2020

IN THE INTEREST OF J.H., Minor Child.

J.H., Father,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Susan Cox,

District Associate Judge.

The State seeks further review of a court of appeals decision

reversing the termination of a father’s parental rights. DECISION OF

COURT OF APPEALS VACATED; JUVENILE COURT JUDGMENT

AFFIRMED.

Christensen, C.J., delivered the opinion of the court, in which all

justices joined.

Alexandra M. Nelissen of Advocate Law, PLLC, Clive, for appellant.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena,

Assistant Attorney General, for appellee.

Nicole Garbis Nolan of Youth Law Center, Des Moines, attorney and guardian ad litem for minor child. 2

CHRISTENSEN, Chief Justice.

In this case, we must decide whether the juvenile court was correct

in terminating a father’s parental rights. The father has an extensive

history of involvement with the Iowa Department of Human Services (DHS)

due to his issues with domestic violence, substance abuse, mental health,

and cognitive functioning, which have led to the termination of his parental

rights to ten other children and the removal of his child upon birth in this

case. Although he made some progress in addressing his domestic

violence and substance abuse issues in this case, he never progressed past fully supervised visits with the child. When serious health issues arose

that required the child to undergo multiple surgeries, attend frequent

doctors’ appointments, and receive special care from his caretakers, the

father showed no interest in the child’s medical care and failed to gain any

understanding of how to care for the child’s medical needs.

The juvenile court ultimately found the State had proven the

grounds for termination of the father’s parental rights and termination was

in the child’s best interests based on the father’s failure to understand the

child’s medical needs and inability to safely parent. The father appealed,1

and the court of appeals reversed. We granted the State’s application for

further review. On our de novo review, we conclude the father remains

incapable of safely caring for the child, and there is no indication that his

parenting abilities will adequately improve in the foreseeable future despite

the extensive services he has received over the years. Therefore, we vacate

the decision of the court of appeals and affirm the order of the juvenile

court terminating the father’s parental rights.

1The juvenile court also terminated the mother’s parental rights, and her appeal was dismissed as untimely. 3

I. Background Facts.

J.H. was born in April 2019. Mom and Dad came to the attention of

DHS at the time of J.H.’s birth due to their significant history of DHS

involvement. This family’s history of DHS involvement spans around

twenty years and has led to the termination of their parental rights to ten

other children for each parent—eight children the parents shared together,

two of Mom’s children from prior relationships, and two of Dad’s children

from prior relationships. The parents have been married to each other

since February 2016 and reside together. Although Mom’s termination is not on appeal, we discuss her history and involvement in this case due to

Dad’s enduring commitment to raising J.H. with Mom and her extended

family.

Both parents struggle with cognitive functioning that has impacted

their ability to parent in the past. At the time of trial, Dad was fifty-four

years old and Mom was thirty-nine years old. Dad has cognitive

functioning challenges due to a brain injury. He frequently denies having

a brain injury, as he did in this termination hearing, while at other times,

he attributes it to a motorcycle accident, an assault, or cocaine use. He

receives services to help manage his day-to-day affairs. Despite this

assistance, Dad still fails to adequately meet his own health needs. For

example, he has hypertension, yet he often forgets or chooses not to take

his blood pressure medication. Similarly, he never engaged in the

recommended six-month follow-up CT scan for his lungs related to a stab

wound in 2017, and he waited until he was experiencing “increased

wheezing, shortness of breath, and cough productive of dark sputum” in

2019 to seek this CT scan. A 2013 psychiatric evaluation of Mom, which was conducted for the

purposes of determining whether she was competent to stand trial, 4

revealed a full-scale IQ of 55. The psychiatrist determined she was not

competent to stand trial and “NEVER WILL BE.” The psychiatrist also

noted Mom would likely need assistance with “tasks more complicated

than tying her shoes” and was “not capable of living independently.” Mom

receives services to help her with her daily living functions, such as

hygiene and shopping.

Both parents have significant criminal histories. Dad has multiple

convictions for domestic abuse assault, some of which are felony

convictions, as well as convictions for intoxication, disorderly conduct, possession of drug paraphernalia, and assault causing bodily injury. Mom

has multiple convictions for assault on a peace officer and disorderly

conduct in addition to convictions for harassment of a public official, fifth-

degree criminal mischief, and interference with official acts.

Dad first had his rights terminated to two children from a prior

relationship in 2008. Leading up to that termination, Dad was subject to

a no-contact order because he assaulted one of the children. Mom had

her rights terminated to a child from a prior relationship in 2000, whom

she gave birth to while she was committed to a mental health institution

because she was “accused of several aggressive criminal acts” and found

to be incompetent. Mom also had her rights terminated to another child

from a prior relationship in 2009.

Mom and Dad have had eight children together before J.H., all of

whom the parents have had their rights terminated. Iowa Code section

232.116(1)(g) has been a ground for termination in each case involving the

parents’ rights to the children they had together. When asked at the

termination hearing in this case about “reports . . . that it’s [her] intent to keep having children until [she’s] able to keep one,” Mom confirmed, “I did

say that, yes, I did.” 5

Mom and Dad had their rights terminated to their first child

together, Child 1,2 in 2009. Just two days after progressing to their first

overnight visit in that case, Dad became intoxicated and attempted to hit

Mom and cover her face with a pillow while she was holding Child 1. Mom

did not initially report this incident because she was afraid of the

consequences it would have on their parental rights. The parents failed to

show any progress after this incident, and the juvenile court eventually

terminated Dad’s rights under Iowa Code sections 232.116(1)(d), (g), and

(l), and Mom’s rights under Iowa Code sections 232.116(1)(d), (e), (g), and (h). In doing so, the juvenile court explained,

[Dad] has not shown he can sustain changes regarding his domestic abusive behavior and substance abuse issues. [Mom] has made her best efforts to learn to safely care for her children. However, she is still unable to make appropriate decisions as indicated by the incidents which caused the removal of [Child 1]. An example of her inability to make appropriate decisions is the fact that [Mom] and [Dad] are now living together. Neither has progressed to the point where they can parent independently.

A year later, the parents’ rights to Child 2 were terminated after Dad

consented to termination and the juvenile court determined Mom

abandoned Child 2. Since then, common themes of domestic violence,

substance abuse, mental health issues, and the inability to demonstrate

sustained progress have emerged in every one of the parents’ subsequent

termination cases. While the parents were trying to reunify with Child 3,

police responded to the scene of a disturbance in which Mom was out of

control and shouting in the street with Dad present. This resulted in Dad’s

arrest for controlled substances and paraphernalia that police found in

Mom’s backpack but Dad claimed were his. Mom refused to respond to

2All of the parents’ children together have the initials “J.H.” Thus, we refer to the children by numbers in their birth order for ease of explanation and to preserve their confidentiality. 6

police commands, and police had to tase her three times in order to

handcuff her. In that termination order, the juvenile court noted the

parents failed to demonstrate “discernable positive change.” In their

termination of parental rights to Child 4 in 2013, the juvenile court

similarly explained the “parents continue to lack the ability or willingness

to respond to services which would correct the situation.”

Child 5 was removed from the parents’ care due to Mom’s

“unresolved mental health” issues and the parents’ domestic violence. The

parents failed to participate in services and could not be located for the July 2014 hearing, which led to the termination of their parental rights to

Child 5. Child 6 was born in January 2017 in Minnesota, where the

parents had gone to have Child 6 with the hopes of avoiding DHS

involvement. By May, the parents had returned to Iowa and came to DHS’s

attention after the parents were involved in a domestic assault incident.

Mom tried to pry Child 6 out of Dad’s arms to leave Dad after an argument

and punched Dad in the eye while he was holding Child 6, resulting in

Dad allowing Mom to take Child 6 and leave. Although the juvenile court

entered a removal order on May 4 due to the parents’ “domestic violence

with the child present, [Dad’s] ongoing substance abuse, [Mom’s] low-

functioning capabilities,” and the parents’ previous terminations of

parental rights to other children, the parents went into hiding with Child 6

and could not be located for eighty-one days. In the meantime, DHS

received another report of abuse, alleging Dad was using crack cocaine

while caring for Child 6.

During the parents’ attempts to reunify with Child 6, Mom gave birth

to Child 7 and Child 8—twins—prematurely at home in December. The twins’ cord blood tested positive for cocaine, and they were hospitalized for

at least six weeks. One of the twins was discharged on oxygen and a heart 7

monitor, and both had special health needs that required regular doctor

appointments and physical therapy. As the juvenile court noted in that

case, “[t]he parents do not regularly attend these appointments, and are

unable to articulate what the twins’ special needs are.” The juvenile court

explained, “Both parents are unaware of the possible long term issues that

the twins will have and have a lack of understanding as to why they will

need to have long-term attention for medical professionals as to their

development.”

In July 2018, the juvenile court terminated the parents’ rights to the twins and Child 6 under section 232.116(1)(g). Regarding Child 6, the

parents’ rights were also terminated under section 232.116(1)(h). In

reaching its decision to terminate, the juvenile court explained,

We are here concerning these children for mostly the same reasons that we were here concerning [the parents’ other] children whose initials appear above, including issues of very low intellectual functioning and other mental disabilities, assaultive behavior and domestic violence, and chronic substance abuse. And after over ten months of concerted effort by the professionals and in many aspects, the parents themselves, we still have no resolution in sight to these issues. The parents continue to lack the functional ability, insight, or sustained, demonstrated change necessary for the court to place the children in either parent’s care, or to continue working toward that goal.

....

. . . Given the ongoing issues of very low intellectual functioning and other mental disabilities, assaultive behavior and domestic violence, and chronic substance abuse, the court has little hope of these issues resolving any time soon. Both parents have been given the opportunity to correct the behaviors that resulted in their child being removed from their care over ten months ago. They are unable to offer any better assurance of lasting change today than they were then.

(Emphasis added.) About nine months later, J.H. was born and removed from the

parents’ care the day after his birth due to the parents’ demonstrated 8

inability to care for their previous children. He was placed in the care of

his paternal uncle and aunt, who have adopted J.H.’s twin siblings. J.H.

has remained in their care throughout the course of this case.

On May 2, 2019, there was a postremoval conference for the parents

with DHS and Family Safety, Risk, and Permanency (FSRP) service

providers regarding J.H. The parents brought a friend from their church,

who behaved aggressively and directed the parents to remain silent during

the conference. The friend informed the DHS and FSRP professionals that

the parents would not have visits unless the friend was present. When the professionals told this friend that she could not attend the parents’ visits

with J.H., the friend told the parents not to have any contact with DHS or

FSRP until the friend was allowed to be there for the contact.

The parents heeded this friend’s advice and refused to interact with

the DHS and FSRP professionals to even schedule visits with J.H. At the

May 31 combined removal and adjudication hearing, the DHS and FSRP

professionals attempted to talk to the parents to again set up visitation

between them and J.H. The parents’ friend from church was again present

at the hearing and directed the parents not to talk to DHS or FSRP, and

once again, the parents listened to this friend. Eventually, the parents’

relationship with this friend deteriorated because she manipulated the

parents out of money. The juvenile court adjudicated J.H. as a child in

need of assistance (CINA) following this hearing.

The FSRP worker set up a visitation schedule and contacted the

parents on June 3 to inform them of the schedule. The contact was

successful, and on June 5, the parents had their first supervised visit with

J.H. since his removal on April 25. The July DHS report described Dad as “less conscientious about his care for [J.H.]” and documented that “[b]oth

parents have been noted to come to visits with poor hygiene and often in 9

dirty clothes, which is concerning for a very vulnerable child.” The report

noted there were no significant parenting concerns during these

supervised visits, but it underscored this note by stating these visits were

“2 hour sessions and do not truly show how [the parents] will care for a

child on a daily basis, especially young children that have extensive needs

and constant supervision.”

In the beginning of August, J.H.’s caretaker took him to an eye clinic

because his eyes appeared cloudy and had discharge. The clinic referred

J.H. to the University of Iowa Health Care for further assessment. J.H. was seen a day later for his assessment, and the ophthalmologist

diagnosed him with severe congenital glaucoma. The ophthalmologist

reported J.H.’s eye pressures were “extremely high” and he needed to have

surgery the following week.

At J.H.’s next visit following the assessment, the DHS worker

explained J.H’s medical condition to the parents, and the parents talked

to J.H.’s ophthalmologist on the phone. The parents told the DHS worker

that it was best they not attend J.H.’s medical appointments but stated

they would “call Iowa City for medical updates.” DHS also facilitated a

family team meeting to discuss J.H.’s medical condition on August 13.

On August 15, J.H.’s ophthalmologist documented that J.H.’s

congenital glaucoma is “a life-long condition” and she could not “predict

[his] response to first surgery yet” but J.H. “[w]ill likely need close follow

up at least for next year.” She also wrote, “Patient is at risk of blindness

(permanent) if congenital glaucoma is not managed appropriately with

medications and/or surgery.” Even with multiple surgeries, the

ophthalmologist concluded J.H. would likely only have “tunnel vision” at best. 10

Because of the risks associated with inappropriate management of

J.H.’s recovery, the ophthalmologist also wrote a letter regarding J.H.’s

care that explained,

[J.H.] is currently recovering from a surgery and has another planned in the next few days. It is imperative that [J.H.] remain under direct supervision of his foster care-takers (e.g., [his uncle and aunt]) lasting no fewer than 2 weeks. This is to ensure proper medication compliance, appropriate eye hygiene, and healing in the post- and pre-operative period.

Pursuant to these recommendations, the parents could not have visits

with J.H. again until October. J.H. underwent multiple surgeries between August and September,

and his treatment also required his caretakers to place various types of

eye drops in his eyes multiple times a day. His uncle and aunt traveled

with J.H. up to three times per week from the south central Iowa area to

Iowa City for J.H.’s medical appointments. During this period, the parents

never reached out to anyone regarding J.H.’s health nor attempted to

attend any of his surgeries or medical appointments despite having

services available to assist them in these tasks.

The parents were able to resume supervised visits twice a week for

three-hour periods in October. During these visits, Dad often left Mom to

care for J.H. and did not fully engage with J.H. Mom would place what

she called “blessing oil”—olive oil—on J.H.’s head and face without

concern about it getting in his eyes. On October 4, the State filed a

termination petition, seeking to terminate the parents’ rights under Iowa

Code section 232.116(1)(g) (2019). DHS subsequently filed a termination

report on October 10, recommending the juvenile court terminate the

parents’ rights to J.H. The report summarized the parents’ issues by documenting the parents’ history with DHS involvement and prior

terminations, as well as their failure to participate in J.H.’s medical care. 11

The case was continued to December 23 at the parents’ request

because they had not been served notice of the termination hearing as of

a few days before the originally scheduled hearing. On December 17, the

State filed an amended petition to terminate parental rights, adding Iowa

Code section 232.116(1)(h) as a ground for termination. DHS continued

to provide services to the parents, including supervised visitation with J.H.

On February 10, 2020, DHS filed an addendum to its October termination

report to update the juvenile court on the parents’ progress. Though the

report noted the parents remained engaged in services and had recently been approved to have visits in their home with J.H., it still recommended

terminating the parents’ rights.

II. The Termination Hearing and Appeal.

The parents’ termination hearing occurred on February 19,

February 26, and March 30, 2020. Dad admitted he had never been to

J.H.’s medical appointments and could not remember who J.H.’s doctors

were. When asked if he knew about anything done to J.H.’s eyes, Dad

answered, “Well, he had patches or something.” In response to a question

about what J.H.’s surgeries did, Dad responded, “They—I don’t know. No,

I don’t.” He could not answer how many surgeries J.H. had undergone,

and he said he did not know how he would take care of J.H.’s eyes. Dad

could not name the family’s long-time DHS worker or the FSRP worker

who brought J.H. to the parents’ supervised visits, and he gave varying

answers about how many children he had.

Mom also could not definitively answer how many children she and

Dad had together, “guessing” they had six children. Like Dad, Mom could

not answer questions about J.H.’s medical issues and was defensive about putting olive oil on J.H.’s head and face, saying it was not harmful if J.H.

got oil in his eyes even though she never consulted a doctor about this. 12

Dad did not see an issue with putting olive oil on J.H.’s head or face despite

neither parent consulting with J.H.’s ophthalmologist about the safety of

doing so. When asked if he believed Mom was “functional enough to care

for a child,” Dad declared, “Absolutely.” Despite the parents’ claims that

they could not attend J.H.’s medical appointments due to transportation

issues, the record shows that was not true because the parents had access

to a medical transport, gas cards, and bus passes. Additionally, a friend

even testified that she would have taken them to appointments if the

parents had simply asked. The guardian ad litem in this case has been the guardian ad litem

for the parents’ children since 2009, and Dad displayed obvious anger

toward her throughout the hearing. The juvenile court had to “repeatedly

admonish [Dad] to stop” acting “in an inappropriate and intimidating

manner towards the Guardian ad litem.” The juvenile court reported Dad

“glared, tensed up, and leaned towards [the guardian ad litem] for

prolonged periods of time.” Additionally, the juvenile court found Mom’s

sister in contempt after she was “repeatedly admonished” for her behavior

during the proceedings. The juvenile court also had to pause the hearing

to warn another of Mom’s sisters about her disruptive behavior.

Dad’s therapist testified that Dad had made progress in gaining

insight into his actions involving domestic violence and substance abuse.

However, it became clear during questioning that this therapist lacked the

full picture of Dad’s situation because the therapist relied only on Dad’s

statements to guide the therapy sessions. Because he only relied on the

information Dad told him, the therapist was misguided about various

aspects of Dad’s life. None of the information the therapist received from Dad was corroborated by any professional associated with this case. 13

The therapist testified that he believed Dad was “almost up to 2,000

days of sobriety from a substance,” or approximately five-and-a-half years.

At best, Dad had really only been sober for less than two years because he

tested positive for cocaine twice in 2018 while he was under DHS

supervision in a prior termination case. The therapist admitted he did not

know this information and explained that he did not do drug screens with

Dad or specifically provide Dad with substance abuse treatment. Likewise,

the therapist was under the false impression that Dad could not attend

J.H.’s medical appointments due to transportation and communication issues.

The therapist was unaware that Dad refused to attend visitations for

about six weeks pursuant to the advice of a church friend. Nor was he

aware of J.H.’s specific medical issues. Mom was also dishonest with her

therapist. Once the dishonesty was revealed at the termination hearing,

the therapist agreed that Mom’s dishonesty could call into question much

of her testimony regarding her previous positive conclusions about Mom’s

progress.

On May 30, the juvenile court issued its ruling to terminate both

parents’ rights to J.H. under Iowa Code section 232.116(1)(g). In its ruling,

the juvenile court determined,

Despite services provided to [Mom] and [Dad] over the last 19 years, they have demonstrated a lack of ability to respond to such services. The parents have mental limitations that no amount of time can resolve to the point where they can provide minimally adequate care to [J.H.].

(Emphasis omitted.)

It also detailed some of the health-related limitations it found

precluded the parents “from safely caring for themselves or safely caring for [J.H.].” Specifically, it expressed, 14 The parents need help with daily living. [Mom] gets daily assistance from Eyerly Ball and Golden Circle. This help includes “daily hygiene routines.” [Dad] has worked with IHH “services to help him manage his day-to-day affairs.” Even with this high level of supervision/assistance, the parents have failed to care for their most basic medical needs. [Dad] has hypertension, yet repeatedly does not take his high blood pressure medication. The medical records indicate, he went for “days” without taking it. When [Dad] saw the medical provider, his blood pressure was elevated and concerning. Also, after [Dad] had CT scan with a lung nodule “concerning for malignancy,” the medical provider recommended he obtain a follow up CT scan in six months. He did not. [Dad] waited two years, until his symptoms worsened, before returning for the follow up CT scan. After the [Mom] had cataracts removed, the ophthalmologist advised there was some eye tissue— which needed to be removed. [Mom] did not follow up. She misunderstood the medical provider and was afraid they were going to remove her eyeballs.

The juvenile court did not rule on the State’s request to terminate parental

rights under section 232.116(1)(h) as an additional ground for termination,

and neither the State nor the guardian ad litem filed a motion to enlarge

the juvenile court’s order to seek a ruling on that additional ground. See

Iowa R. Civ. P. 1.904(2) (“On motion joined with or filed within the time

allowed for a motion for new trial, the findings and conclusions may be

reconsidered, enlarged, or amended and the judgment or decree modified

accordingly or a different judgment or decree substituted.”). Both parents appealed the juvenile court’s termination ruling, but

we dismissed Mom’s appeal because it was untimely. In its response to

Dad’s petition on appeal, the State only asked the court to affirm

termination under Iowa Code section 232.116(1)(g) and did not assert

section 232.116(1)(h) as an alternative ground for affirmance. We

transferred the case to the court of appeals, which reversed the juvenile

court’s termination of Dad’s parental rights. The court of appeals

determined the State failed to meet its burden for termination under Iowa Code section 232.116(1)(g), reasoning, “the father did respond to services. 15

He overcame his substance-abuse and domestic-violence issues and there

were no concerns for his ability to parent the child during supervised

visitations.” One judge dissented, concluding “the State showed by clear

and convincing evidence that this father was unable to provide a safe long-

term environment for this child,” especially due to his “lack of involvement

in the basic medical care of this young child.” We granted the State’s

application for further review.

III. Standard of Review.

We review termination of parental rights proceedings de novo. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). While we are not bound by the

juvenile court’s factual findings, we accord them weight, especially in

assessing witness credibility. Id. “[O]ur fundamental concern” on review

“is the child’s best interests.” In re J.C., 857 N.W.2d 495, 500 (Iowa 2014).

IV. Analysis.

Dad’s petition on appeal raises multiple challenges to his

termination. First, he claims the district court erred in terminating his

parental rights to J.H. under Iowa Code section 232.116(1)(g). Second, he

maintains termination of his parental rights is not in J.H.’s best interests

under Iowa Code section 232.116(2) even if the State demonstrated the

grounds for termination were met under Iowa Code section 232.116(1)(g).

Third, Dad argues the district court “should have found reason not to

terminate under the exceptions found in Iowa Code section 232.116(3)(b)

and (c).”

A. Termination under Iowa Code section 232.116(1)(g). The

juvenile court concluded there were grounds to terminate Dad’s parental 16

rights under Iowa Code section 232.116(1)(g). Under that section, the

State must prove all of the following:

(1) The child has been adjudicated a child in need of assistance pursuant to section 232.96.

(2) The court has terminated parental rights pursuant to section 232.117 with respect to another child who is a member of the same family or a court of competent jurisdiction in another state has entered an order involuntarily terminating parental rights with respect to another child who is a member of the same family.

(3) There is clear and convincing evidence that the parent continues to lack the ability or willingness to respond to services which would correct the situation.

(4) There is clear and convincing evidence that an additional period of rehabilitation would not correct the situation.

Iowa Code § 232.116(1)(g).

Dad only challenges the third and fourth elements. He argues he

has made progress in therapy to alleviate the substance abuse and

domestic violence concerns present in his past termination concerns and

“there was no evidence” that he “lacked the ability to provide for the care

of” J.H. He also claims the reason he “was not as participatory as he

should have been with [J.H.’s] medical needs” was because DHS did not

work with him to figure out J.H.’s needs.3 We disagree. Iowa Code section 232.116(1)(g) is unique because it is the only

ground for termination under chapter 232.116 that requires the juvenile

court to find parents have already had their rights terminated to another

child who is a member of the same family. See Iowa Code § 232.116(1). It

3To the extent Dad may be claiming DHS failed to provide him with reasonable efforts to reunify with J.H., Dad waived this claim on appeal because he never objected to the sufficiency of the services at the juvenile court level. See In re L.M., 904 N.W.2d 835, 840 (Iowa 2017) (explaining a parent’s failure to object to the sufficiency of services “early in the process so appropriate changes can be made” waives the issue and generally cannot raise it later (quoting In re C.B., 611 N.W.2d 489, 494 (Iowa 2000) (en banc))). 17

is also the only ground that examines whether a “parent continues to lack

the ability or willingness to respond to services,” only applying to those

parents who continue to repeat their parenting wrongs in spite of the

services they’ve received in both the past and present termination cases.

Id. § 232.116(1)(g)(3). Thus, unlike other grounds for termination, which

focus more on the parents’ behavior in the case at issue, the juvenile court

must specifically examine the parents’ past termination cases in deciding

whether termination is appropriate under Iowa Code section 232.116(1)(g).

The State still retains the burden of proof under section 232.116(1)(g), but the parents’ history of past terminations—especially when those

terminations were under similar circumstances—is highly relevant in

proving the parents lack the ability or willingness to respond to services.4

Here, Dad has had his rights terminated to all eight other children he had

with Mom under this same code section at issue here. Therefore, we

cannot ignore Dad’s history of inadequate parenting.

It is commendable that Dad took steps to participate in services

more in this case than he did in previous cases. Yet, we find little

4In some states, there is a statutory presumption of unfitness for parents who have been found unfit in a past termination proceeding. See, e.g., Kan. Stat. Ann. § 38- 2771(a)(1) (West, Westlaw current through 2020 Reg. & Spec. Sess.) (noting there is a presumption that “a parent is unfit by reason of conduct or condition which renders the parent unable to fully care for a child, if the state establishes, by clear and convincing evidence, that: (1) A parent has previously been found to be an unfit parent in proceedings under K.S.A. 38-2266 et seq., and amendments thereto, or comparable proceedings under the laws of another jurisdiction”); Minn. Stat. Ann. § 260C.301(b)(4) (West, Westlaw current through 2020 Reg. & 1st-6th Spec. Sess.) (“It is presumed that a parent is palpably unfit to be a party to the parent and child relationship upon a showing that the parent’s parental rights to one or more other children were involuntarily terminated or that the parent’s custodial rights to another child have been involuntarily transferred to a relative under Minnesota Statutes 2010, section 260C.201, subdivision 11, paragraph (e), clause (1), section 260C.515, subdivision 4, or a similar law of another jurisdiction[.]”); see also In re R.D.L., 853 N.W.2d 127, 136–38 (Minn. 2014) (holding Minnesota’s statutory presumption that parents who have previously had their parental rights involuntarily terminated to other children are palpably unfit to parent other children does not violate the United States and Minnesota Constitutions because it is narrowly tailored to serve the compelling government interest of protecting the general welfare of children). 18

credibility in the therapist’s testimony that he had had no parenting

concerns about Dad. Despite the therapist’s testimony that Dad had

progressed “tremendously” in addressing his anger issues, it is troubling

that Dad continued to openly display anger towards the guardian ad litem

throughout the termination hearing to the point where the juvenile court

“had to repeatedly admonish [Dad] to stop” acting “in an inappropriate and

intimidating manner towards the [g]uardian ad litem.” This guardian ad

litem has worked with the parents since 2009 with the common goal of

furthering their children’s best interests, yet Dad remained unable to treat her appropriately.

Dad was not forthcoming with the therapist about his substance

abuse history, his past DHS involvement, or J.H.’s medical needs. The

therapist did not know how many children Dad ever had in his care, that

Dad was manipulated out of money and into refusing visits with J.H. by a

church friend, J.H.’s diagnosis, or anything about Mom’s functioning level.

We also find it concerning that, even after the therapist discovered Dad’s

history as it was revealed during the termination hearing, the therapist did

not feel he needed to know this information to make conclusions about

Dad’s progress and parenting abilities. Because the therapist only based

his conclusions on what Dad told him, Dad was able to successfully

portray a false reality premised on half-truths and the utter absence of

critical information—information that any therapist would reasonably

need to possess before making a recommendation about Dad’s ability to

safely care for a child.

As DHS noted in the parents’ July 2019 report,

both parents need to understand that simply doing a list does not suffice, but that they will need to truly make changes and gain understanding of their long histories as well as learn to care for themselves and a child’s numerous needs. 19

Although Dad crossed participating in therapy off of his list of services, we

cannot say he made changes from it based on the pattern of dishonesty he

demonstrated with his therapist.

Dad’s domestic violence was not the prevailing concern in this case,

but we still have to consider his history of domestic abuse, which includes

multiple felony convictions for domestic abuse assault. Parents like Dad

must work to change the documented reputation they have established

through their actions in past termination cases. Cf. Iowa Code

§ 598.41(1)(b) (“if the court finds that a history of domestic abuse exists” in child custody cases, “a rebuttable presumption against the awarding of

joint custody exists”). Dad’s threatening behavior toward the guardian ad

litem during the termination hearing and his failure to be forthcoming

about his reasons for DHS involvement, including his domestic violence,

call into question the therapist’s conclusion that dad has progressed

“tremendously” in addressing his anger issues.

Moreover, Dad’s history of substance abuse and domestic violence

were not the only barriers keeping him from reunifying with J.H. Dad’s

failure to learn how to care for J.H.’s medical needs and his mental

limitations also presented significant challenges to reunifying Dad with

J.H. These challenges were not new, as they also contributed to the

termination of Dad’s parental rights to three other children in 2018 under

section 232.116(1)(g). There, the juvenile court specifically noted that Dad

loved his children and could attend to their basic needs during visits but

was not “active in learning about the children’s needs, especially those of

the twins,” who had special medical needs. Similar to Dad’s lack of

involvement with J.H.’s medical treatment in this case, Dad did not attend the twins’ medical appointments and was “unaware of the possible long

term issues that the twins will have.” He also had “a lack of understanding 20

as to why [the twins] will need to have long-term attention by medical

professionals as to their development.”

Dad similarly continues to lack the ability or willingness to respond

to services to safely care for J.H. in this situation. Dad made no more

efforts to understand J.H.’s medical needs in this case than he did to

understand the twins’ medical needs in 2018. At the termination hearing,

he could not remember the names of J.H.’s doctors and testified that he

had not been to any of J.H.’s doctors’ appointments. When asked if he

knew about anything done to J.H.’s eyes, Dad answered, “Well, he had patches or something.” When asked about J.H.’s multiple surgeries and

what they did for J.H., Dad responded, “I don’t know.” It was clear from

Dad’s testimony that he lacked even a general understanding of J.H.’s

serious medical condition or how to care for it.

Dad claims he could not explain J.H.’s medical needs or attend

J.H.’s appointments because DHS did not provide him with the assistance

he needed, but the record shows otherwise. DHS had a family team

meeting to explain J.H.’s medical condition to the parents shortly after his

diagnosis, and the professionals supervising the parents’ visits with J.H.

often discussed J.H.’s condition with the parents. Additionally, Dad had

access to a medical transport, gas cards, and bus passes to attend J.H.’s

appointments and surgeries. A family friend also testified that she would

have taken him if he asked. DHS provided Dad with the services he needed

to show an interest in and attempt to gain an understanding of J.H.’s

medical needs, but he did not take advantage of them. Dad was altogether

neglectful of J.H.’s medical needs, further demonstrating that he was

unwilling or unable to respond to the services offered. At the time of the termination hearing, J.H. was an infant at risk of

permanent blindness if his caretakers did not provide him with the proper 21

treatment. It speaks to Dad’s inability to meet J.H.’s medical needs that

J.H.’s ophthalmologist found it “imperative” for J.H. to “remain under

direct supervision of his foster care-takers” without parental visits for at

least two weeks after his surgery to “ensure proper medication compliance,

appropriate eye hygiene, and healing.” Even after J.H.’s postoperative

period, his caretakers had to place various eye drops in J.H.’s eyes

multiple times a day and make frequent trips to Iowa City for medical

appointments. Meanwhile, Dad could not even demonstrate that he was

capable of attending to his own health needs, as he either forgot or chose not to take his blood pressure medication “for days” at a time despite his

hypertension and could not manage a simple follow up CT scan on time.

Dad presented the same inability or unwillingness to understand J.H.’s

medical needs as he did when his rights were terminated to his twins in

2018. Consequently, we agree with the juvenile court that “[t]here is clear

and convincing evidence that [Dad] continues to lack the ability or

willingness to respond to services which would correct the situation” under

Iowa Code section 232.116(1)(g)(3).

We also agree with the juvenile court that “[t]here is clear and

convincing evidence that an additional period of rehabilitation would not

correct the situation” under section 232.116(1)(g)(4). When the

termination hearing commenced, J.H. had been removed from Dad’s care

for approximately ten months—essentially his entire life. For

approximately six weeks following removal, Dad refused to interact with

DHS or other professionals attempting to reunify him with J.H. at the

advice of a church friend who manipulated him for money. This prevented

DHS from scheduling visits between Dad and J.H. for those six weeks during a crucial bonding stage in newborn J.H.’s life. When asked at the

termination hearing why he chose not to visit J.H. at the advice of his 22

church friend, the only insight Dad provided was that he did that “because

how the DHS was doing us.”

Dad continued to show no insight into what was required of him as

a parent beyond simply attending the supervised visits with J.H. He

frequently complained about and tried to reject the FSRP provider’s

recommendations for J.H.’s care, reporting that he knew what he was

doing. When the service provider told the parents that J.H.’s caretaker

requested they use a certain type of bottle to feed J.H. to prevent J.H. from

getting gas, Dad claimed it did not make sense and that J.H.’s caretaker was just on a “power trip.” He also had issues providing J.H. with the

wrong formula. He testified that he had not provided J.H.’s caretaker with

any money to assist in J.H.’s care because his brother “gets social security

and all that stuff,” although he was informed that his brother was not

receiving financial assistance to care for J.H. All of this was in addition to

the previously discussed lack of involvement in J.H.’s medical care.

Although Dad generally met J.H.’s basic needs during his fully

supervised visits, there is a substantial difference between meeting a

child’s needs under the supervision and guidance of other people and

being able to independently care for a child, especially a child with J.H.’s

unique medical needs. Cf. In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App.

1996) (“Visitation, however, cannot be considered in a vacuum. It is only

one element in what is often a comprehensive interdependent approach to

reunification. If services directed at removing the risk or danger

responsible for a limited visitation scheme have failed its objective,

increased visitation would most likely not be in the child’s best interests.”).

J.H. is a young child with serious medical needs who requires “constant, responsible, and reliable” parenting. In re A.B., 815 N.W.2d 764, 777 (Iowa

2012) (quoting In re L.L., 459 N.W.2d 489, 495 (Iowa 1990)). Throughout 23

this case, Dad only showed an interest in J.H. during supervised visits and

was otherwise content to sit back and let others care for J.H., and there is

“clear and convincing evidence that an additional period of rehabilitation

would not correct the situation” under Iowa Code section 232.116(1)(g)(4).

In reaching this conclusion, we give weight to the juvenile court’s finding

that it “d[id] not believe the parents will ever be able to provide minimally

adequate care for [J.H.].” (Emphasis added); see In re A.S., 906 N.W.2d at

472 (noting we accord the juvenile court’s factual findings weight).

“Children simply cannot wait for responsible parenting.” Id. at 474 (quoting In re C.K., 558 N.W.2d 170, 175 (Iowa 1997)). “While we recognize

the law requires a ‘full measure of patience with troubled parents who

attempt to remedy a lack of parenting skills,’ Iowa has built this patience

into the statutory scheme of Iowa Code chapter 232.” In re Z.P., 948

N.W.2d 518, 523 (Iowa 2020) (per curiam) (quoting In re C.B., 611 N.W.2d

489, 494 (Iowa 2000) (en banc)). The legislature carefully constructed this

time frame to balance the parent’s efforts toward reunification and the

child’s best interests. Id. at 524. For children J.H.’s age, that time frame

is six months, and then “termination proceedings must be viewed with a

sense of urgency.” Id. at 523–24 (quoting In re C.B., 611 N.W.2d at 495).

At the commencement of the termination hearing, J.H. had been

removed from Dad’s care for approximately ten months, beginning the day

after J.H. was born. Dad has received services intermittently through DHS

for about a decade and had his rights terminated to ten other children,

eight of them under the same code section the juvenile court relied on to

terminate his rights to J.H. Nevertheless, Dad still has many of the same

parenting deficiencies that he displayed over the last decade in his prior termination cases. 24

As the juvenile court aptly explained in Dad’s 2018 termination case

involving Children 6 through 8,

[Dad] has a 38 year history of addiction to crack cocaine. He has been determined to be fully disabled by the Social Administration since 1999 due to a brain injury received in a motorcycle accident, a beating, or both. He, too, has a long history of assaultive behavior and domestic violence. These themes presented themselves again [in this case]. The only difference with these children is that [Mom] and [Dad] tried to put themselves in a position to demonstrate that they could, together, be parents. It has been a sincere effort, and it has been the court’s pleasure to get to know these parents closer to the way they would want to be known. Unfortunately, their efforts are simply not enough to change the themes that resulted in the prior terminations.

That same summary and conclusion is just as applicable to this case as it

was in the 2018 termination case.

Dad participated in services throughout the course of J.H.’s

removal, but J.H. still could not be safely placed in his care due to a

combination of Dad’s failure to grasp J.H.’s medical needs, lack of interest

in parenting J.H. outside of visits, and an inability to show sustained,

demonstrated change. “Rather than speculate about what the future

holds for Dad . . . , it is more accurate to look in the rear-view mirror and

make a decision for [J.H.] based on what has already happened . . . .” In re B.H.A., 938 N.W.2d 227, 236 (Iowa 2020). After years of services to

remedy his parenting skills, there is still no indication that any period of

additional time at this point would correct the situation under Iowa Code

section 232.116(1)(g)(4). Accordingly, like the juvenile court, we find clear

and convincing evidence to support termination of Dad’s parental rights

under Iowa Code section 232.116(1)(g).

B. Best Interests of the Child. We next turn to the best-interests framework in Iowa Code section 232.116(2), as Dad argues termination of

his parental rights was not in J.H.’s best interests regardless of whether 25

the State proved the grounds for termination under section 232.116(1)(g).

In considering whether termination is in the child’s best interests under

232.116(2), we “give primary consideration to the child’s safety, to the best

placement for furthering the long-term nurturing and growth of the child,

and to the physical, mental, and emotional condition and needs of the

child.” Iowa Code § 232.116(2). This consideration may include “[w]hether

the parent’s ability to provide the needs of the child is affected by the

parent’s mental capacity or mental condition” and the child’s integration

into a preadoptive home. Id. at § 232.116(2)(a)–(b). We also

look to the child’s long-range as well as immediate interests. This requires considering what the future holds for the child if returned to the parents. When making this decision, we look to the parents’ past performance because it may indicate the quality of care the parent is capable of providing in the future.

In re J.E., 723 N.W.2d 793, 798 (Iowa 2006) (quoting In re C.K., 558 N.W.2d

at 172).

Dad contends termination is not in J.H.’s best interests because

termination will prevent J.H. from “establish[ing] important and vital

connections with his parents and other biological relatives on the Mother’s

side.” Dad also maintains termination is not in J.H.’s best interests

because it will deprive J.H. of the “unique important cultural opportunities

by being placed outside of an African American home or a culturally aware

home,” but this issue was never raised below. Neither the termination

order nor Dad’s petition on appeal mention the parents’ race, but police

reports and medical notes about the parents in the record show Dad is

Caucasian and Mom is African-American.

The juvenile court’s termination of Mom’s parental rights to J.H. is final. “[I]n termination of parental rights proceedings each parent’s

parental rights are separate adjudications, both factually and legally.” In 26

re D.G., 704 N.W.2d 454, 459 (Iowa Ct. App. 2005). Dad does not have

standing to contest termination of Mom’s parental rights. See In re K.R.,

737 N.W.2d 321, 323 (Iowa Ct. App. 2007). Even if the argument about

raising J.H. in a culturally aware home had been preserved and Dad had

standing, race is but one factor for the district court to consider in

determining a child’s best interests and it “pale[s] into insignificance when

we compare the health needs of th[e] child.” In re A.B., 815 N.W.2d at 777

n.7 (alterations in original) (quoting In re F.W., 870 A.2d 82, 86 (D.C. 2005)

(per curiam)). The problem of standing aside, it is especially troubling that much

of Dad’s best-interests argument focuses on maintaining a relationship

between J.H. and Mom and Mom’s relatives. This is clearly not in J.H.’s

best interests. Mom has unresolved mental health issues that result in

aggression and assaultive behavior. Her sister displayed similar problems

during J.H.’s termination hearing, as she was sentenced to serve seven

days in jail for contempt for her disruptive and threatening behavior

during the hearing. The juvenile court also had to pause the termination

hearing to warn another of Mom’s sisters about her troubling behavior.

Dad even told his therapist that Mom has issues with her family because

they “break[] her down” with the way they talk to her.

As we have already noted, Mom has very low cognitive functioning.

In evaluating Mom’s competency, a psychiatrist concluded she would

likely need assistance with “tasks more complicated than tying her shoes.”

Mom cannot maintain her own daily living functions independently, let

alone independently parent a child with serious medical needs. After

having her rights terminated to ten other children over the course of twenty years and intensive services, Mom was in no better position in this case to

understand or overcome her parenting deficiencies in order to safely 27

parent J.H. Nonetheless, Dad testified that he thought Mom was

“[a]bsolutely” capable of caring for a child.

Dad continues to reside with Mom, and his commitment to keeping

J.H. around Mom and her family is just another example of Dad’s inability

to make appropriate parenting decisions. Poor decision-making related to

each parent’s commitment to one another has been a problem since the

termination of the parents’ first child together in 2009, when the district

court noted “the fact that [Mom] and [Dad] are now living together” as an

example of Mom’s “inability to make appropriate decisions.” If we were to return this child to Dad, we would essentially be nullifying the juvenile

court’s termination of Mom’s parental rights because Dad intends to raise

J.H. with Mom.

Overall, termination is in J.H.’s best interests based on J.H.’s

immediate and long-range interests. J.H. is too young to care for himself,

and he is at risk of permanent blindness if his caretaker does not provide

him with the appropriate treatment for his congenital glaucoma. In

determining J.H.’s best interests, “we look to [Dad’s] past performance

because it may indicate the quality of care [he] is capable of providing in

the future.” In re J.E., 723 N.W.2d at 798 (quoting In re C.K., 558 N.W.2d

at 172). In this case, Dad’s past performance—in both the 2018 case

involving his twins with special medical needs and in this case—shows

Dad cannot grasp how to parent a child with special medical needs.

It is reasonable to assume Dad will struggle with a medically fragile

infant in this case. It is also reasonable to assume that Dad would not

ask for help if he was having problems meeting J.H.’s needs because the

parents previously tried to evade DHS by declining to report domestic violence, fleeing to Minnesota to give birth there, hiding with a child after

a removal order was issued for the child, having twins born prematurely 28

in their home, and avoiding prenatal care. Frankly, had the juvenile court

ruled on the State’s request to terminate Dad’s parental rights under Iowa

Code section 232.116(1)(h), which asks whether “[t]here is clear and

convincing evidence that the child cannot be returned to the custody of

the child’s parents” at the time of the termination hearing, we have no

doubt that the answer would have been “yes.”

Even with daily assistance, Dad struggles to meet his own basic

medical needs. Although a parent’s mental limitations alone are

insufficient grounds for termination, they “can be a relevant consideration when it affects the child’s well-being.” In re A.S., 906 N.W.2d at 473. Dad

has received a plethora of services in an attempt to remedy inadequate

parenting skills over the course of many years and many termination

cases, but he still lacks the same “functional ability, insight, or sustained,

demonstrated change necessary for the court to place [J.H.] in [his] care”

that the juvenile court noted when it terminated Dad’s rights to three other

children in 2018. “[C]hildren should not be placed at risk so their parents

can experiment with their parenting skills.” In re M.B., 553 N.W.2d at 346.

Dad already wasted valuable opportunities throughout J.H.’s life to

connect with him. As we have discussed, Dad did not have any visitation

with J.H. for approximately the first six weeks of J.H.’s life because Dad

refused to interact with the professionals who could facilitate those visits.

Dad also chose not to attend J.H.’s medical appointments and surgeries,

where he would have had other opportunities to interact and bond with

J.H. Because he skipped these events, Dad missed out on months’ worth

of contact with J.H. Dad never progressed beyond fully supervised visits

with J.H., J.H. has never been in Dad’s care, and the record shows no significant bond between J.H. and Dad. Dad chose to minimize his

connection to J.H., and the time for him to remedy his lack of parenting 29

skills has expired. See In re Z.P., 948 N.W.2d at 523–24 (explaining the

time frame for a parent to remedy a lack of parenting skills before

termination is “viewed with a sense of urgency” (quoting In re C.B., 611

N.W.2d at 495)).

“[W]e cannot deprive [J.H.] of permanency after the State has proved

a ground for termination under section 232.116(1) by hoping someday

[Dad] will learn to be a parent and be able to provide a stable home for

the child.” In re P.L., 778 N.W.2d 33, 41 (Iowa 2010). J.H. has lived with

his paternal uncle and aunt virtually his entire life, and they have ensured that all of J.H.’s medical needs are met.5 They also adopted J.H.’s twin

sisters, and the concurrent plan in case of termination has long been for

them to adopt J.H. See Iowa Code § 232.116(2)(b) (noting the existence of

a preadoptive home and the child’s integration into that home as

considerations in determining the child’s best interests); In re J.E., 723

N.W.2d at 800 (stating there is a “preference” in juvenile law “to keep

siblings together”). J.H. has integrated into their home, and termination

of Dad’s parental rights would allow J.H. to be adopted into what he has

always known as his home with two of his siblings. Consequently, we

conclude that termination of Dad’s parental rights is in J.H.’s best

interests to enable J.H.’s permanent placement in an adoptive home.

C. Exceptions Precluding Termination. Within his claim that

termination is not in J.H.’s best interests, Dad passively states the district

court “should have found reason not to terminate under the exceptions

found in Iowa Code section 232.116(3)(b) and (c).” Dad’s argument on this

5Although we stressed our concerns about Dad’s desire to keep J.H. around Mom and her family, we do not have the same concerns about J.H.’s placement with Dad’s brother. Dad’s brother and the brother’s wife have proven more than capable of caring for J.H. and his twin siblings, and the DHS records indicate Dad harbors animosity towards his brother and was not supposed to know where his brother lives. 30

issue is unclear because he blended it into his best-interests argument

and mentioned no facts or cases explaining why these exceptions apply

even though he has the burden to prove them. See In re A.S., 906 N.W.2d

at 476. We acknowledge the expedited time deadlines and abbreviated

procedures governing termination appeals may pose challenges for the

attorneys, and we strive to accommodate those challenges through our

appellate rules governing chapter 232 cases. However, it makes it much

more difficult for us to address a parent’s argument on appeal if the

petition does not separately identify and argue each issue presented. In this case, the juvenile court did address the possible existence of

section 232.116(3) exceptions, so we will assume that Dad’s argument is

properly before us. Under section 232.116(3), subsections (b) and (c)

provide:

The court need not terminate the relationship between the parent and child if the court finds any of the following:

b. The child is over ten years of age and objects to the termination.

c. There is clear and convincing evidence that the termination would be detrimental to the child at the time due to the closeness of the parent-child relationship.

Iowa Code § 232.116(3).

Iowa Code section 232.116(3)(b) is inapplicable because J.H. was

just under a year old at the time of the termination hearing. Section

232.116(3)(c) also does not preclude termination in this case because there

was no evidence of a close bond between Dad and J.H. J.H. was removed

from Dad the day after his birth and was never returned to his care. The

record shows Dad often left Mom to care for J.H. during visits and did not fully engage with J.H. To the extent that a bond did exist, there is no 31

evidence that terminating it would harm J.H. See In re A.M., 843 N.W.2d

100, 113 (Iowa 2014) (holding section 232.116(3)(c) did not apply because

there was no evidence that termination would harm the child, who “was

just over a year old at the time of trial” and had a close bond with her

relative legal custodian). We affirm the district court’s order terminating

Dad’s parental rights.

V. Conclusion.

For these reasons, we vacate the decision of the court of appeals and

affirm the juvenile court’s order terminating Dad’s parental rights. DECISION OF COURT OF APPEALS VACATED; JUVENILE

COURT JUDGMENT AFFIRMED.